Written Testimony of Mario Gonzalez from the September 25, 1990, Senate Hearing

STATEMENT OF MARIO GONZALEZ, ATTORNEY, CHEYENNE RIVER AND PINE RIDGE WOUNDED KNEE SURVIVORS'ASSOCIATIONS AND OGLALA SIOUX TRIBE, SUPPORTING PROPOSALS TO ESTABLISH A MEMORIAL AND HISTORIC SITE TO COMMEMORATE THE EVENTS SURROUNDING THE 1890 INDIAN MASSACRE AT WOUNDED KNEE CREEK, SOUTH DAKOTA, IN THE HEARING OF SEPTEMBER 25,1990, BEFORE THE SELECT COMMITTEE ON INDIAN AFFAIRS, U.S. SENATE, WASHINGTON, D.C.

Mr. Chairman, and honorable Members of the Committee, my name is Mario Gonzalez. I am an enrolled member of the Oglala Sioux Tribe and a descendant of Chief Lip's Band. I am appearing here today as the attorney for the Wounded Knee Survivors' Associations and the Oglala Sioux Tribe. I am honored to appear before the Committee to discuss events surrounding the December 29,1890 Wounded Knee Massacre
.

I am also related by blood to some of the victims and survivors of the massacre. Dewey Beard
, the last survivor of the Battle of the Little Bighorn and an 1890 Massacre survivor, was a first cousin to my great-great-grandmother, Rattling Hawk. Dewey's real mother, Seen By Her Nation, and my great-great-great-grandmother, Jealous Of Her, were sisters.

One cannot understand what happened at Wounded Knee without understanding something about the Sioux people and their history.

The term "Sioux" should be distinguished from the word "Siouan," which refers to a linguistic stock that the Sioux are a part of. Other Siouan peoples include such Tribes as the Mandan, Omaha, Otoe, Winnebago and Osage. The Sioux refer to themselves as "Lakota," "Dakota," or "Nakota," depending on whether the "L," " D" or "N" dialect is used.

It is also important to understand that the term "Sioux Nation" has been used to refer to different entities at different times. According to the Indian Claims Commission, the Sioux people were divided into seven divisions:

Mdewakantons

Sissetons

Wahpakootas

Wahpetons

Yanktonais

Yanktons

Tetons

The Mdewakantons, Sissetons, Wahpakootas, and Wahpetons, or eastern Sioux, are sometimes referred to as "Santee" or "Mississippi" Sioux and speak with the "D" dialect. The Yanktonais also speak with the "D" dialect. The Yanktons speak with the "N" dialect and the Tetons with the "L" dialect.

The Tetons, or the western Sioux, were sub-divided into seven bands:

Blackfeet

Brule

Hunkpapa

Minneconjou

Oglala

Saris Arc (No Bows)

Two Kettle

The Teton Bands held aboriginal title to a vast territory west of the Missouri River in what are now the States of North and South Dakota, Nebraska, Kansas, Montana, Wyoming and Colorado. Much of this territory was held jointly with the Cheyenne and Arapaho Nations. The Big Horn Mountains were the western boundary. The Yellowstone and Missouri Rivers were the northern boundary. The Republican River was the southern boundary.

The Tetons, along with the Yanktonai, also held aboriginal title to a tract of territory consisting of at least 14 million acres east of the Missouri River in the States of North and South Dakota.

Aboriginal title is legally based on use and occupation of an area "for a long time." Only a sovereign nation can extinguish aboriginal title, either through conquest, purchase or otherwise. The Supreme Court has held that aboriginal title can be extinguished by the United States without payment of compensation.

Recognized title, on the other hand, is a grant of title from a European nation, or successor nation such as the United States. Many times tribal leaders ask, "How can the United States give us land that we already own?" But this is exactly what happens. Even though a tribe may hold aboriginal title to a territory, the United States can still "grant" the tribe title to the same area under its laws. And once it is recognized, it comes under the protection of the Fifth Amendment and can be acquired by the federal government only by purchase or eminent domain.

The 1851 Ft. Laramie Treaty
recognized title in the Teton and Yankton Sioux to 60 million acres west of the Missouri River in the States of South and North Dakota, Nebraska, Montana and Wyoming. During the 1860s, the United States attempted to build a road called the "Bozeman Trail" across the 1851 Treaty territory. This resulted in the Powder River War of 1866 through 1868, which culminated in the 1868 Ft. Laramie Treaty. Under the Treaty:

All war between the United States and the Sioux people, in this case, the Tetons, Yanktonai, and Santee Sioux, would "forever cease" and the United States pledged its honor to keep the peace;

Sioux would deliver over to the United States bad whitemen, and Indians who commit wrongs or depredations upon the person or property of whitemen, blackmen or other Indians, to be punished according to its laws.

Sioux Nation title would be recognized to a 26 million acre reservation, commonly referred to as the "Great Sioux Reservation" and located primarily in the State of South Dakota west of the Missouri River, for its "absolute and undisturbed use and occupation," and only persons authorized by the United States would be permitted to pass over, settle upon or reside on it.

All country north of the North Platte River and east of the summits of the Big Horn Mountains, namely, the 34 million acres of unceded 1851 Treaty territory and aboriginal title territory beyond the 1851 Treaty boundaries would be held and considered "unceded Indian territory," and no white person or persons would be permitted to occupy the same. The treaty also provided that the Sioux would relinquish the right to permanently occupy the areas outside of the Reservation boundaries, but could hunt on them so long as the buffalo ranged on these lands so as to justify the chase.

That no cession of lands held in common on the Great Sioux Reservation would be valid unless signed by at least 3/4 of the adult male Sioux occupying or interested in the Reservation.

In 1874 the United States Army planned and undertook a military expedition into
the Black Hills portion of the Great Sioux Reservation. The expedition was led by Lt. Col. George Armstrong Custer, who sent out glowing reports of gold. This led to an invasion of the Hills by white miners and settlers in violation of the 1868 Treaty and created intense pressure on Congress to open the Hills for settlement. The influx of miners and settlers into the Hills increased when President Grant refused to enforce the Treaty and remove these trespassers. In the winter of 1875 and 1876, most of the Sioux were residing on the Great Sioux
Reservation, keeping the peace they promised to maintain under the 1868 Treaty. Others were exercising their hunting rights with their Cheyenne and Arapahoe allies near the Big Horn Mountains. Contrary to the terms of the Treaty, the Commissioner of Indian Affairs sent instructions to the hunting parties that if they did not return to the Great Sioux Reservation by January 31,1876, they would be declared "hostile." The Sioux were under no legal obligation to return and could not return because of the weather. They were attacked, but defeated General Crook at the Battle of Rosebud and annihilated Lt. Col. Custer at the Battle of the Little Bighorn on June 25, 1876.

The U.S. violated Articles 11 and 16 of the 1868 Treaty by attacking the Sioux while they were exercising their right to hunt near the Bighorn Mountains. Although some refer to the Battle of the Little Bighorn as a "massacre," it was clearly a battle in which the Indians were defending their families against an egocentric Indian fighter who planned to capitalize on the event and become President of the United States.

The United States Government resented its defeat at the Battle of the Little Bighorn. The Battle, therefore, marked the beginning of a course of dishonorable dealings by the federal government with the Sioux people to [get] revenge [for] Custer's defeat. This course has continued down to the present time.

On August 15, 1876, Congress passed an appropriations bill, often referred to as the "starve or sell" bill, which provided that no further appropriations would be made for the subsistence of the Sioux under the 1868 Treaty unless they gave up the Black Hills and reached an accommodation with the United States that would enable them to become self-supporting. To accomplish this cession, Congress requested the President to appoint a commission to negotiate an agreement with the Sioux to buy the Hills.

The 1876 Commission, however, could not obtain the requisite number of signatures required by
Article 12 of the 1868 Treaty, so Congress took matters into its own hands and enacted the
proposed "Agreement" into law on February 28, 1877. This enactment confiscated the Black Hills,
the 1851 Treaty lands, and hunting rights recognized under the 1868 Treaty.

It is important at this point to explain the importance of hunting rights. To survive, the Sioux people had to depend on buffalo for food, clothing and shelter. Other game animals were often scarce and too hard to kill. The buffalo, however, were a steady food supply until they were slaughtered by buffalo hunters with the encouragement of the federal government. The Powder River War was fought because the United States was interfering with buffalo migrations by putting a road across 1851 Treaty territory, the so-called "Bozeman Trail." The importance of the buffalo to the Sioux cannot be overemphasized. This is illustrated by Chief Spotted Tail's insistence that hunting grounds on the Republican River be protected in the 1868 Treaty.

Beginning in 1882, the Government attempted to reduce the remainder of the Great Sioux Reservation by creating six smaller reservations and having the Sioux cede the remaining 9 million acres. Congress supposedly accomplished this objective through the Act of March 2,1889. However Section 28 of the Act provided that the Act would not go into effect until signed by at least 3/4 of the adult male Sioux interested in the reservation and proclaimed by the President. Since each Band of Sioux was a separate, distinct sovereign, Section 28 should have been interpreted by the U.S. as requiring 3/4 adult male signatures of each Band. This view is corroborated by the fact that Section 16 requires 3/4 of the adult signatures of each Band to constitute a release of title to each other's reservations.

The United States has never obtained the requisite 3/4 adult male signatures required by Section 28 of the 1889 Act, even under its own interpretation of that Section. Moreover, the Federal Government used coercion and fraud to obtain most of the signatures it managed to get. Many whitemen married to Indian women were allowed to sign as Indians and take allotments under the Act as Indians, even though Congress clearly denied them such rights earlier on August 9, 1888. Many of them dressed up as Indians for that purpose. Some persons signed twice. Many Indians under the age of 18 were allowed to sign. Some Indians signed after they were provided alcohol. But, worst of all, many Indian men were not allowed to leave the agency until after they signed, only to return home and find their gardens dried out. The President nevertheless issued a Proclamation verifying that the requisite number of signatures were obtained. Everyone has been forced to live under its provisions since 1889. The Supreme Court has termed the taking of the Black Hills in 1877 as the most 11 ripe and rank case of dishonorable dealings" in the nation's history. History will someday show and prove that the taking of 9 million acres of Sioux lands under the later 1889 Act was even more rank and dishonorable.

In the late 1880s, a Paiute Indian named Wovoka had a vision that was explained to a Sioux delegation in 1889 consisting of Kicking Bear, Short Bull and others, that if they did a certain ritual dance, the Indian people would be united with deceased relatives, the buffalo would return and the whiteman would disappear. Kicking Bear's delegation brought the prophesies contained in Wovoka's vision back to the Sioux reservations.

A terrible drought occurred in both 1889 and 1890. There were epidemics that caused death in many families. The beef rations promised by the 1889 Crook Commission were reduced. The reduction of beef rations was a violation of Article 5 Of the 1877 Act that provided that, in consideration for the confiscation of the Black Hills and Sioux hunting rights, the U.S. would provide all aid necessary for civilization and subsistence rations, or the equivalent thereof for as long as necessary for the survival of the Sioux. This provision was continued in Section 19 of the 1889 Act.

Because of the theft of their lands in 1877 and 1889, and the terrible conditions that they lived under in 1889 and 1890, many Sioux looked for salvation in the Ghost Dance religion. The dance was a pacifist religious movement, but white settlers living near the reservations misinterpreted it as an Indian uprising. Indian agents also became alarmed and asked for military intervention and protection. The Sioux in turn became alarmed at the whites and donned Ghost Shirts to protect them from the bullets of the whitemen. This created great tension, which was exacerbated by what is called yellow journalism depicting the Sioux as bloodthirsty savages.

A boundary dispute between the newly created Rosebud and Pine Ridge Reservations also played a part in the events that occurred in 1890. The 1889 Act placed the Rosebud/Pine Ridge boundary at the mouth of Blackpipe Creek, about 15 miles east of Pass Creek. Chief Lip's band of Wazhazha had already settled on the east side of Pass Creek when the 1889 Act went into effect. Because the U.S. regarded them as Rosebud Indians, they were informed that they had to move to the Rosebud Reservation.

Lip's people didn't want to move, since they had already devoted much time and energy on developing their homes and lands. They therefore demanded to be placed on the Pine Ridge census rolls. According to tribal elders, when Lip heard that General Miles was coming to Pine Ridge Agency, he decided to visit him to request assistance in resolving the boundary dispute. Other Rosebud Indians, who were concerned about the arrival of troops at their agency, attempted to convince Lip to join them in making a stand against the U.S. Army in the badlands. Lip ignored them and eventually established a temporary camp on Wounded Knee Creek near Pine Ridge Agency. Other Indians headed for the badlands and became part of the Ghost Dance camp. There were also many clashes in 1890 between white cowboys, the U.S. Army and Indians that resulted in the massacres of Indian people. The following are three examples:

The State of South Dakota took matters into its own hands. Governor Mellette sent hundreds of guns and ammunition to Rapid City to arm a cowboy militia he created, known as the "Home Guard." In early December, 1890, this militia devised a plan to kill Indians and collect depredation monies. They picked their best riders to cross the Cheyenne River onto the Pine Ridge Reservation and shoot at the Ghost Dancers. When the Ghost Dancers followed, they were ambushed and 75 of them were killed and scalped. The scalps and ghost shirts were taken to Chicago where they were displayed and sold.

A small band of Indians were also killed by the cowboy militia in early December, 1890, on French Creek. The band had gone to Buffalo Gap to hunt at the ranch of a friendly whiteman they knew. They were greeted with a gun. They were unaware of the events that were transpiring around them. They sensed something wrong and attempted to leave. Because their horses were tired, they had to make camp on French Creek and were massacred in a surprise attack the next morning. One young woman managed to escape to tell the story. The U.S. Government had a duty under Article 8 of the 1877 Act to protect the Indians, but failed to hold the State of South Dakota responsible.

The United States Army was also guilty of a massacre in early December of 1890. Troops A & B of the 8th Cavalry under Capt. Almond B. Wells was stationed at Olrichs, S.D. Wells allowed Lt. Joseph C. Byron to enter the Pine Ridge Indian Reservation and massacre a small band of Indians under Chief Two Strike on Cuny Table with Cannon fire. All the Indians were killed. This incident appears to have been covered up by the United States Army for the past 100 years. The property of the Indians was buried and the soldiers of the 8th Cavalry were sworn to secrecy, so that even General Miles, the overall commander at Wounded Knee in 1890, may not have been aware of it.

The above incidents are documented in the Renee Sansom Flood Collection at Vermillion, South Dakota.

Eventually, over half of the U.S. Army surrounded the Sioux reservations to protect settlers. Orders were sent out by the Army to arrest the Sioux leaders. Agent James McLaughlin sent the Indian police to arrest Chief Sitting Bull on the Standing Rock Reservation. On December 15, 1890, Sitting Bull
and members of his family were killed. Members of Sitting Bull's band sought refuge with Sitting Bull's half brother, Chief Big Foot, at Cherry Creek on the Cheyenne River Indian Reservation.

Fearing for the safety of his band, Big Foot evaded arrest and sought refuge with Chief Red Cloud on the Pine Ridge Indian Reservation. Red Cloud had extended an invitation for Big Foot to come to Pine Ridge and help make peace between the whites and Indians. Big Foot's band endured great hardship on its way to Pine Ridge. The Band was intercepted at Porcupine Butte on December 28, 1890, by Major Samuel Whiteside. Big Foot surrendered and was taken to Wounded Knee Creek where he and his followers were fed and allowed to set up camp.

The Wounded Knee Massacre occurred the next day. Although the U.S. Army has attempted to shift the blame for the massacre to the Sioux, it was in actuality caused by the actions of the 7th Cavalry, whose members were intent on getting even for Custer's defeat at the Battle of the Little Bighorn in 1876.

Colonel James Forsyth assumed command of the 7th Cavalry at Wounded Knee on the eve of December 28, 1890. A barrel of Whiskey was brought into camp by an Indian trader. Officers, including Forsyth, and soldiers got drunk celebrating the capture of Big Foot. Some soldiers even tried to get Big Foot that night, but were stopped by the guards. This caused the surrounded Indians to become uneasy. Some of them understood English and knew that the soldiers were up to no good and were out for revenge.

Among the drunken soldiers was their drunken interpreter Philip Wells. Wells was part Sioux, but hated the Sioux for killing his father. He was known as a bad interpreter and was especially disliked by Big Foot's people.

On the morning of December 29, 1890, Forsyth ordered the disarming of Big Foot's band. The men were separated from the women and children. The soldiers were abusive to the Indian men during the disarming, pointing empty guns to their heads and pulling the triggers. The weapons were stacked in a pile near the Indians. The Indians, understandably, were reluctant to relinquish their weapons, although the majority of them did.

During the disarming, a scuffle occurred between some soldiers and a man called Black Fox, which some say, resulted in an accidental discharge of a rifle. Fighting immediately broke out on both sides and a massacre of Big Foot's people ensued. A few of the Indian people who were still armed fired back while others attempted to retrieve their weapons from the pile of guns. Some Indians engaged the soldiers in hand-to-hand combat, including Dewey Beard, who killed four soldiers.

Big Foot's people attempted to escape by rushing into a nearby ravine. Many soldiers died in their own crossfire. Soldiers chased and killed Indian women and children as far as two miles from the camp site. When it was over, about 356 members of Big Foot's band were killed or wounded. Approximately 30 soldiers from the 7th Cavalry died with them.

The slaughter of Big, Foot's Band was caused in large part by the fact that the 7th Cavalry officers and interpreter, Wells, were drunk. Much of the basis for the Army's version of the 1890 Massacre was Wells's eye witness account, but his veracity was highly questionable. In all likelihood, Wells glossed over the whole affair to coverup his own ineptness as an interpreter and to cover for his friends.

Evidence also exists that when the bodies of the soldiers killed in the Massacre were exhumed in 1905 for reburial, their bodies were remarkably preserved due to the high concentration of alcohol in their bodies. This documentation can be found in the Renee Sansom Flood Collection at Vermilion, South Dakota.

The callousness of the 7th Cavalry is evident from their gruesome conduct as they buried the Indian dead, posing for photographs and jumping on the piles of bodies to pack them down into the mass grave. The soldiers were buried immediately. The Indian people were not buried, as indecent a burial as it was, until five days after the massacre, on January 3, 1891. At least one of Big Foot's people is known to have been buried alive, and with the knowledge of the overseers of the burial party.

Later that year, Congress passed the Sioux Depredations Act of 1891 to compensate the so-called "innocent victims" of the 1890 Massacre and the Ghost Dance troubles for their losses, including white people and churches. Everyone but the Indian victims of the 1890 Massacre were compensated.

My clients, the Cheyenne River and Pine Ridge Wounded Knee Survivors'Associations, have tried for years to get Congress to atone for the 1890 Massacre. Several bills have been introduced in Congress over the years, but all failed. The Survivors' Associations nevertheless continue in their quest for justice.

On March 13,1917, General Miles stated in a letter to the Commissioner of Indian Affairs
that: " [i]n my opinion, the least the Government can do is to make a suitable recompense to the
survivors who are still living for the great injustice that was done them and the serious loss of
their relatives and property-and I earnestly recommend that this may be favorably considered by
the Department and by Congress and a suitable appropriation be made." And again, in an
April 12,1920, letter to the Commissioner, Miles reiterated his position by stating that " [t] he
present time seems a most favorable time for the government ... to atone in part for the cruel and
unjustifiable massacre of Indian men, women and children at Wounded Knee on the Red Cloud Reservation." The General was hardly innocent of the heinous acts committed against the Sioux Indians at Wounded Knee, but at least he was man enough to admit his mistakes and urge the federal government to do likewise.

The Wounded Knee Survivors' Associations have been developing proposed
legislation which would have Congress: (1) make a formal apology to the
Sioux people for the 1890 Massacre: (2) establish a national monument and memorial
at the Massacre site; and (3) compensate the dependants of the Indian victims for the
killing or wounding in the form of benefits, i.e., educational benefits and multi-purpose
buildings, plus direct compensation for property confiscated by the Army. In 1921 Inspector
McLaughlin, whose wife was Philip Wells's first cousin, inventoried most of the property
taken from Big Foot's people and found its value to be $20,000.00.

It is my belief as that the Wounded Knee Massacre, and indeed the massacres perpetuated by
the 8th Cavalry and Governor Mellette's cowboy militia, are more than just moral claims. They
are legal claims which only Congress can resolve.

It is questionable whether the military forces had a right to be on the Sioux reservations in 1890. The federal government certainly breached its promise to maintain peace with the Sioux under the 1868 Treaty. It also failed to follow the extradition procedures outlined in the 1868 Treaty when it attempted to arrest Big Foot on the Pine Ridge Reservation.

In 1890 the federal government also had a duty to protect the persons, lives and property of the Sioux Indians under Article 8 of the 1877 Act and the Fifth Amendment. it presently has a duty to compensate the Indians for their losses under the Fifth Amendment and the 1868 Treaty which provided that if persons "subject to the authority of the U.S. shall commit a wrong upon the person or property of the Indians, the U.S. will ... reimburse the injured person for the loss sustained."

I urge this exemplary Committee to start the process to atone for the 1890 Wounded Knee Massacre by initiating legislation to accomplish the objectives of my clients. Thank you for your kind attention.